Citation Nr: 21065255 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-45 363 DATE: October 25, 2021 REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a bilateral shoulder disability is remanded. Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1979 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans' Affairs (VA) Regional Office in Waco, Texas. In August 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. Procedural History In February 2019, the Board found VA medical opinions dated March 2013, December 2013, and June 2016 inadequate regarding the Veteran's claims for service connection for neck, bilateral shoulder, back, and hip disabilities because the opinions solely relied on the lack of documented evidence of treatment in the Veteran's service records. Thereupon, the Board remanded the claims for further development, to include providing new VA examinations and obtaining medical opinions to help determine the etiology of the Veteran's neck, shoulders, back, and hips disabilities. The Board deferred its decision regarding service connection for sleep apnea pending review of outstanding treatment records to be obtained on remand. See Board Remand dated February 22, 2019. On remand, VA obtained outstanding private and VA treatment records, and the Veteran was afforded VA examinations for neck, bilateral shoulders, back, and hips disabilities, and though not requested in the February 2019 remand, VA afforded the Veteran a sleep apnea examination, and VA medical opinions were obtained for these disorders. See VA medical opinions dated December 6, 2019. In January 2021, the Board found the December 2019 VA opinions inadequate and remanded the claims for addendum etiology opinions. In February 2021, VA granted service connection for bilateral hip strain. As the grant of service connection is considered a full grant of the benefits on appeal for that claim, it is no longer before the Board for appellate consideration. A.B. v. Brown, 6 Vet. App. 35 (1993). In April 2021, the Board found February 2021 VA opinions addressing the etiology of the Veteran's neck, shoulder, and back disabilities inadequate, and remanded those claims to obtain new opinions. See Board Decision and Remand dated April 30, 2021. New VA opinions dated May 2021 as well as a July 2021 addendum were obtained and associated with the electronic claims file. The Board finds there has not been substantial compliance with its April 2021 remand directives regarding these claims. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). VA Opinions Once VA undertakes the effort to provide an examination or medical opinion when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the May 2021 VA examiner identified a diagnosis of degenerative disc disease (DDD) but failed to recognize current diagnoses of degenerative joint disease of the cervical and lumbosacral spines, which is suggestive that the examiner's review of the claims file was cursory at best, rendering the opinion of little or no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts and provides the required explanation for conclusions). Additionally, in the May 2021 addendum regarding the etiology of the Veteran's back disorder, the examiner observed that the service treatment records are negative for any complaints of back pain or diagnosed back condition during service, noted a 2013 diagnosis of DDD, and opined that degenerative disc disease "is caused by the aging process[.]" See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (the absence of evidence in the Veteran's service treatment records, alone, may not serve as the basis for a negative opinion as to direct service connection). Moreover, in a July 2021 addendum, the examiner recognized 1997-1998 treatment records reflecting back pain five to six years after separation from service when the Veteran was in his thirties but failed to reconcile this evidence with the May 2021 opinion that the Veteran's DDD is due to aging. See Nieves-Rodriguez, supra. Lastly, despite the Board's request that the examiner, in providing each opinion, "discuss and weight (not merely reference)" the Veteran's August 2018 Board hearing testimony asserting that the demands of his mechanic job during service caused his current neck, shoulders, and back disabilities, and a 1981 service treatment record reflecting that the Veteran complained of pain after lifting his tool box, and providing the precise location in the electronic claims file where the hearing transcript and the 1981 service treatment record are found, the examiner merely referenced heavy lifting without any consideration of the Veteran's lay statements or his in-service duties as a vehicle mechanic. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). The foregoing deficiencies in the May and July 2021 VA opinions render them inadequate. See Nieves-Rodriguez, supra. VA's failure to comply with this remand directive further frustrates the Board's review of the Veteran's appeal as well as the expedient resolution of his claims. Accordingly, remand is necessary to obtain adequate opinions addressing the likely etiology of the Veteran's neck, shoulders, and back disorders. See Barr, supra; Stegall, supra. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Then, schedule the Veteran for VA examinations of the neck, shoulders, and back by a VA physician who is board-certified in the field of orthopedic medicine OTHER than any examiner who previously conducted examinations and/or rendered opinions in this case, as to the nature and etiology of the Veteran's neck, shoulders, and back disabilities. The claims file and a copy of this Remand will be made available to the examiner, who will acknowledge receipt and review of these materials. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. *The examiner's review of the body of this Remand is strongly recommended to assist in avoiding errors that have rendered MULTIPLE previous VA opinions inadequate. After a careful review of the claims file and examination of the Veteran, the examiner is asked to respond to the following: (a) Identify all currently diagnosed neck, shoulders, and back disabilities since the date of claim in April 2012. (b) For each currently diagnosed neck, right and/or left shoulder, and back disability, provide an opinion as to whether it at least as likely as not (50 percent or greater probability) had its onset during active duty service or is otherwise casually or etiologically related to it. *In providing each opinion, please discuss and weigh (not merely reference) the Veteran's testimony that the physical demands of his mechanic job in service caused the current disabilities. See e.g., (i) VBMS entry titled "Hearing Transcript" on 08/07/2018; and (ii) Service treatment record dated March 11, 1981 reflecting that the Veteran complained of pain after lifting his tool box (see VBMS entry with document type "STR Medical," receipt date 07/06/1994, at page 68). *The Board's reference to evidence in this context should not be construed as a determination of its credibility. A complete rationale should be provided for all opinions. 3. Thereafter, mindful that prior errors have rendered MULTIPLE previous VA opinions inadequate, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, TAKE CORRECTIVE ACTION. Then, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.